Jammu & Kashmir High Court
Chanchal Singh vs Union Of India (Uoi) And Ors. on 13 August, 2003
Equivalent citations: 2003(3)JKJ381
Author: Pramod Kohli
Bench: Permod Kohli
JUDGMENT Pramod Kohli, J.
1. Petitioner was serving in Border Security Force as Constable. While on active duty he was apprehended by the Civil Police for his involvement in the Commission of offence under Sections 376/452 RPC. Challan was presented before the Chief Judicial Magistrate, Udhampur on 6.7.1998, when he was committed for trial to Sessions Judge, Udhampur on the same day. Since the petitioner was serving in Border Security Force, Dy. Inspector General. Station Headquarter, BSF CI (OPS) Ramban moved an application dated 26.10.1998 before the Sessions Judge, Udhampur with a request to hand over the accused to the BSF authorities for his trial by the Security Force Court, in terms of Section 80 of the Border Security Force Act. Learned Sessions Judge accepted the request of the BSF authorities and vide order dated 2.2.1999 transferred the custody of the accused/petitioner to BSF for trial by the Security Force Court. Relevant record of the case was ordered to be transmitted to the DIG, Border Security Force under rules. Consequent upon the afore-said order passed by the Sessions Judge, Udhampur, the Commandant, 108 Bn. BSF where the accused was posted at the relevant time issued charge-sheet dated 17. 2. 1999.
2. Petitioner was also ordered to be kept under close arrest vide a separate order passed by the respondents. After the charge-sheet, the BSF authorities ordered recording of evidence in accordance with Rule 48 of Border Security Force Rules. During the recording of evidence (ROE) father of victim of rape, namely, Lal Din submitted a written application to the Commandant stating therein that he, his wife and daughter Rakia Bano (victim of alleged rape) have nothing to say in this case and they do not want to make any statement. Respondent No. 4, T. S. Gill, Dy. Commandant, Tac HQ 108 BN BSF Bidda, Udhampur, who was deputed for preparing (ROE) recorded evidence of other witnesses submitted the proceedings of ROE to the Commandant, who on consideration of the same convened Summary Security Force Court on 18.11.1999 at Tac HQ, 108 Bn BSF Bidda J&K. Based upon the findings of the Summary Security Force Court, the petitioner was dismissed from service vide the impugned order dated 18.11.1999. This punishment was imposed under section 18(1) of the Border Security Force Act 1968. As far as the commission of offence under Section 376/452 RPC is concerned, the authority i. e. the Commandant again approached the Sessions Judge, Udhampur with a fresh request to try the accused in Civil Court as no evidence has come against the petitioner before the Border Security Force authorities. This request was made vide application dated 19.11.1999. Learned Sessions Judge again accepted the request of the BSF authorities and ordered the trial of the accused/petitioner by the Criminal Court vide order dated 19.11.1999. Petitioner has assailed the proceedings of the Summary Security Force Court as also order dated 18.11.1999 dismissing the petitioner from service by the competent authority and order dated 19.11.1999 passed by the Sessions Judge, Udhampur ordering the trial of the petitioner by the Criminal Court.
3. In the objections filed by the respondents, it is averred that that the petitioner has not availed statutory remedy available to him under Section 117 of the Border Security Force Act 1968, read with Rule 167 of the Border Security Force Rules, 1969. Petitioner was participating in anti-militancy operational duty in sensitive area of Village Dedha on 28. 5. 1998 when he was found missing from other troops at about 1630 Hrs alongwith his arms/ammunition for which a case was registered with the Police Station, Mahore. He was traced at about 1600 Hrs on 29. 5. 1998 alongwith his arms/ammunition by police and arrested for offence under Section 376/452 RPC for committing rape with Rakia Bano D/O Lal Din R/O Shajroo. The victim was of 14 years of age. He was taken into Judicial Custody at Central Jail, Udhampur on the same day. It is further stated that a departmental Staff Court of Inquiry was ordered and his transfer was sought under Section 80 of the Border Security Force Act from the Criminal Court for trial by a Security Force Court. Consequent upon the transfer of the custody of the accused to Border Security Force he was put up on offence report for alleged commission of following offences under Rule 45 of the Border Security Force Rules, 1969 before the Commandant:
(a) Deserting the service;
(b) Committing a Civil Offence that is to say rape punishable under Section 376 RPC. The Commandant strictly following the provisions of Rule 45 after hearing the charge remanded him for ROE.
Under the order of Commandant record of evidence was conducted in terms of Rule 48 of the Border Security Force Rules in presence of the petitioner. He was allowed to cross-examine all the prosecution witnesses, to make statement and also to produce defence witnesses under rules. During the record of evidence, prosecution witnesses, namely, Lal Din stated that his wife and daughter had made the statements before the Magistrate at Udhampur on 28.5.1998 and they do not want to make any other statement before the Border Security Force authorities. Record of evidence was submitted to the Commandant, who remanded the petitioner for trial by Summary Security Force Court on charge under Section 18(1) of the Border Security Force Act. As no prima facie case under Section 46 of the Border Security Force Act read with Section 376 RPC was established in the record of evidence against the petitioner, he was tried by the Summary Security Force Court on charge under Section 18(1) of BSF Act only. Petitioner was provided a friend for his assistance. Petitioner pleaded guilty before the Court and the Court accepting his plea of guilt sentenced him " to be dismissed from service" on 18.11.1999. He was there-after again transferred to the Court of Sessions Judge, Udhampur on 19.11.1999 for his trial for offence under Section 376 RPC.
4. From the pleadings of the parties the following questions emerge for determination by this Court:
1. Whether the sentence awarded to the petitioner by the BSF authorities vide the impugned order dated 18.11.1999 is legal and valid and can be interfered with in exercise of powers of Judicial review of this Court under Article 226 of the Constitution of India;
2. Whether the petitioner can be subjected to trial by Criminal Court for the commission of offence under sections 376/452 RPC, on being exonerated of the same charge by the BSF authorities, after having secured the custody of the petitioner from Criminal Court for trial by the BSF authorities.
5. Mr. B. Singh, learned counsel appearing for the petitioner submitted that the charge against the petitioner under Section 18(1) BSF Act has not been proved or established. He has not been declared as a deserter as according to the admitted factual position, the petitioner was absent from duty for one day only and that too he was prevented from joining his Unit on account of his arrest by the Police. There is no element of desertion in the absence of the petitioner from duty as alleged. It is further submitted that the petitioner has been punished solely on his alleged plea of guilt. At the first place, the petitioner never pleaded guilty before the Summary Security Force Court and Secondly that the plea of guilt has not been recorded in the manner as prescribed under the BSF Act and the Rules framed there-under. Under these circumstances, no plea of guilt can be put in aid to punish the petitioner. It is further the case of the petitioner that findings of the Security Force Court have not been confirmed as required under Section 107 of the BSF Act and the punishment awarded to the petitioner is without jurisdiction. It is also pleaded that Commandant was not competent to try the petitioner for offence under Section 18(1) of the BSF Act.
6. As regards the trial by the Criminal Court, it is contended that the BSF authorities after having secured the custody of the accused from Criminal Court for trial by the Security Force Court cannot send him back to the Criminal Court for trial, particularly when during the proceedings before the BSF authorities charge under Section 46 of the BSF Act read with Section 376 RPC has not been established for want of evidence.
7. Mr. Ajay Sharma, learned counsel appearing for the respondents while refuting the contention of the petitioner has submitted that the procedure prescribed under the BSF Act and the Rules for trial of the petitioner by Security Force Court has been duly observed. His plea of guilt has been recorded by the Summary Security Force Court in accordance with Rule 142 and therefore, the order impugned in the writ petition cannot be interfered. He has further submitted that under the Criminal Courts and BSF Courts (Adjustment of Jurisdiction) Rules 1969, the petitioner can be sent back to Criminal Court for trial. Even after option was exercised by the BSF authorities to try the petitioner by a Security Force Court. QUESTION NO. 1
8. After the petitioner was arrested by the police for alleged offence under Section 376/452 RPC, the Commandant made a request to the Sessions Judge, Udhampur for transfer of the custody of the accused to BSF authorities for trial by exercising option under Section 80 of the Border Security Force Act. Section 80 of the Border Security Force Act 1968 reads as follows:
"80. Choice between criminal Court and Security Force Court
-- When a criminal Court and a Security Force Court have each jurisdiction in respect of an offence, it shall be in the discretion of the Director-General, or the Inspector General or the Deputy Inspector General within whose command the accused person is serving or such other officer as may be prescribed, to decide before which Court the proceedings shall be instituted and, if that officer decides that they shall be instituted before a Security Force Court, to direct that the accused person shall be detained in Force Custody."
9. The request of the Commandant was accepted by the learned Sessions Judge, Udhampur and the petitioner was ordered to be sent to the Border Security Force for trial by the Security Force Court vide order dated 2. 2. 1999. The relevant part of the order of the Court reads as under:
"By virtue of Section 47 the offence of rape committed by a person subject to BSF Act against a person who is not subject to this Act becomes triable by a Security Force Court only when the accused is found to be at the time of the offence on his active duty. In the present case admittedly accused is subject to the provisions of the said Act as per the certificate and communication dated 28.1.1999 that he was on active duty at the time of alleged commission of the offence, as such, he is triable by a Security Force Court and for his trial the DIG has exercised his option seeking his trial by a Security Force Court. The request of the DIG is therefore, allowed and it is ordered that the accused shall be tried by the Security Force Court. The office shall transmit the statement of the case under rules to DIG or any other person authorized by him to collect the same. The office shall also direct Superintendent Jail, Udhampur to hand over the custody of the accused to such security Force personal/personals who is/are authorized by DIG. "
10. Thereafter the charge-sheet dated 17. 2. 1999 was served upon the petitioner, while he was in BSF custody. The charge-sheet reads as under:
CHARGE-I "BSF ACT SEC 18(1): DESERTING THE SERVICE in that he, at 1630 Hrs Military Operation along with his arms/amn after allegedly consuming liquor until apprehended by the civil police on 29. 5. 1998 at about 1600 Hrs in area of Sheela Forest.
CHARGE-II BSF ACT SECTION 46 : COMMITTING A CIVIL OFFENCE THAT IS TO SAY, RAPE PUNISHABLE UNDER SECTION 376, RPC.
In that he, On 28. 5. 1998 committed alleged rape on Miss Rakia Bano aged 14 years daughter of Sh. Laldin R/O Village Shajroo after absenting himself from anti militancy Spl Operation duty alongwith his arms/amn."
11. Consequent upon the service of charge-sheet, procedure under Rule 45 (3) was adopted and respondent No. 4 was detailed to prepare record of evidence in terms of Rule 48 of BSF Rules. In exercise of the power under Rule 51 (ii) petitioner was subjected to trial by a Summary Security Force Court. Accordingly a Summary Security Force Court was constituted in exercise of the powers under Section 70 of the Act by the Commandant. The procedure adopted by the Summary Security Force Court is prescribed in Chapter IX. Rule 142 deals with general plea of "Guilty" or "Not Guilty". Rule 142 of the Border Security Force Rules, 1969 reads:-
"142. General plea of "Guilty" or "Not Guilty" - The accused person's plea of "Guilty" or "Not Guilty" (or if he refuses to plead or does not plead intelligibly either one or the other), a plea of "Not Guilty" shall be recorded on each charge.
(2) If an accused person pleads "Guilty" that plea shall be recorded as the finding of the Court, but before it is recorded, the Court shall ascertain that the accused understands the nature of the charge to which he has pleaded guilty and shall inform him of the general effect of that plea, and in particular of the meaning of the charge to which he has pleaded guilty and of the difference in procedure which will be made by the plea of guilty and shall advise him to withdraw that plea if it appears from the record or abstract of evidence (if any) or otherwise that the accused ought to plead not guilty.
(3) Where an accused person pleads guilty to the first two or more charges laid in the alternative, the Court may after sub-rule (2) has been complied with and before the accused is arraigned on the alternative charge or charges, withdraw such alternative charge or charges as follow the charge to which the accused has pleaded guilty without requiring the accused to plea thereto, and a record to that effect shall be made in the proceedings of the Court, "
12. Sub-Rule (2) of Rule 142, referred to above prescribes the detailed procedure for recording the plea of guilty where the accused pleads guilty. The safe-guards envisaged under this rule are that before the plea of guilt is recorded the Court is required to ascertain that the accused understands the nature of charge. He shall be informed of the general effect of that plea, as also the meaning of the charge to which he has pleaded guilty. The Court is also required to make the accused understand the difference in procedure which will be made by the plea of guilty and shall advice him to withdraw the plea of guilt if it appears to the Court from the record or abstract of evidence that the accused ought to "plead not guilty".
13. Mr. Sharma has produced the record of the proceedings of Summary Security Force Court containing 55 leaves. The proceedings of the Summary Security Force Court are from pages 51 to 55. On page 51 plea of guilty is recorded in the form of Question-Answer. Page 52 is the charge-sheet wherein charge under Section 18(1) of BSF Act 1968 has been framed against the petitioner. Page 53 is again a certificate which also contains question and answer and in regard to plea of guilty said to be recorded by the Court, it also contains a certificate at the bottom that the provisions of Rule 142 (2) of BSF Rules 1969 have been complied with. Page 54 is a document containing the details of the officers who were present during the summary Security Force Court and the proceedings said to be held at TAG HQ 108 Bn BSF Bidda on 18.11.1999 and page 55 is an order dated 17.11.1999 for convening the Summary Security Force Court.
14. All these documents except page 55 (convening order), page 52 (Charge-sheet) are without signatures of any person. What is shocking is that the plea of guilt said to be recorded by the Summary Security Force Court is neither signed by any member of the Court nor by the petitioner (accused). This fact was brought to the notice of the learned counsel (Mr. Ajay Sharma) during the hearing of the petition in the Court itself, who after examination of the record has stated that this is the only record available with the authorities and handed over to him. It is important to note that this record also contain the proceedings of ROE (record of evidence) and all the documents bear the signatures of the concerned officials and the witnesses recorded during the course of ROE.
15. The sole basis for passing the impugned order dated 18.11.1999 is the plea of guilty said to be recorded by the Summary Security Force Court as is the plea raised in para 12 of the reply.
16. Provisions of Rule 142 of BSF Rules are mandatory in nature and thus the procedure prescribed therein is to be strictly adhered to while recording the plea of guilt of the accused. This view was taken by a Division Bench of this Court in Union of India and Ors. v. Ex Havaldar Prithpal Singh and Ors., 1991 KLJ 513 which reads -
"At the time of recording the 'plea of guilt' of the accused in a Summary Trail as well the accused should be necessarily informed of the nature of the charges leveled against him ands the Court should ascertain that the accused has understood the nature of the charge to which he pleads guilty and shall inform him of the general effect of the plea and in particular of the meaning of the charge to which he pleads guilty. The Court should further require to advise the accused to withdraw that plea if it appears from summary of evidence or otherwise that the accused ought to plead not guilty- Non fulfillment of such a procedure violates and said rule and vitiates the trial as the rule is mandatory in nature.
Signature of the accused in token of the plea of guilt should be obtained which will show that the accused has willingly 'pleaded guilty'. The Court should also certify this compliance of the rule in the minutes of the proceedings of the trial."
17. Since Rule 142 of BSF Rules is pari-materia with Rule 125 of Army Act, the ratio of above judgment has full application to this case.
18. As noticed above, there is absolutely no record that inspires confidence of the Court recording the plea of guilty of the accused/petitioner before the summary security Force Court. Therefore, in absence of any record in this respect the contention of the respondents that the accused/petitioner pleaded guilty before the Summary Security Force Court, which was recorded under Rule 142 of the BSF Rules, 1969 cannot be accepted. Therefore, I am of the considered opinion that the accused did not plead guilty before the Summary Security Force Court as there is no such record, hence the sentence awarded to the petitioner for desertion under Section 18(1) of the BSF Act vide the impugned order dated 18,11.1999 is quashed.
19. Record produced by the learned counsel for the respondents be returned to him. However, a Zerox copy of the file shall be retained by the Registrar (Judicial) duly initialed by him, in a sealed cover, which shall form a part of the record of the writ Court.
20. It is next argued by Mr. B. Singh that charge of desertion against the petitioner is otherwise not established. The Act complained of does not fall within the scope of Section 18(1) of the BSF Act and at the most it can be a case of absence without leave falling within the purview of Section 19 of the Act.
21. The charge against the petitioner is that he absented at 1630 Hrs on 28. 5. 1998 from anti-militancy operation alongwith arms/ammunition after allegedly consuming liquor and apprehended by Civil police on 29. 5. 1998 at 16 Hrs. Section 61 of the BSF Act 1968 which deals with apprehension of deserter reads:-
"61. Capture of deserters -- (1) Whenever any person subject to this Act deserts, the Commandant of the Unit to which he belongs, shall give information of the desertion to such civil authorities, as, in his opinion, may be able to afford assistance towards the capture of the deserter; and such authorities shall thereupon take steps for the apprehension of the said deserter in like manner as if he were a person for whose apprehension a warrant had been issued by a magistrate, and shall deliver the deserter, when apprehended, into Force custody. "
22. This Section makes it obligatory for the Commandant of the Unit to give information to Civil authorities for apprehension of the deserter. What is envisaged by the Section is that the commandant has to formulate an opinion regarding desertion of any person subject to act and then inform the Civil authorities regarding such desertion to secure the custody of such a person. On receipt of such information Civil authorities are entitled to arrest the deserter and deliver him to the custody of the Force.
23. Admittedly, the Commandant did not inform any Civil authority regarding the alleged desertion of petitioner nor there is any averment in the reply that the Commandant formulated any opinion regarding desertion of the petitioner and intimated Civil authorities for his apprehension.
24. Petitioner's arrest on 29. 5. 1998 at 1600 Hrs by Civil police was not pursuant to any warrant or information provided by Commandant. He was arrested by Civil Police for his alleged commission of offence of rape and trespass (under sections 376/452 RPC). Though "Desertion" has not been defined under BSF Act and the rules but a distinction has to be drawn between "Desertion" and "absence without leave" in view of Sections 18 & 19 of BSF Act. Similar provisions of Army Act were considered by the Apex Court in Varinder Kumar v. The Chief of Army Staff, New Delhi, AIR 1986 SC 1060, wherein Hon'ble Supreme Court held:-
"Sections 38 and 39 and Sections 104 and 105 make a clear distinction between 'desertion' and 'absence without leave', and Section 106 prescribes the procedure to be followed when a person absent without leave is to be deemed to be deserter. Clearly every absence without leave is not treated as desertion but absence without leave is to be deemed to be desertion if the procedure prescribed by Section 106 is followed. Since every desertion necessarily implies absence without leave the distinction between desertion and absence without leave must necessarily depend on the animus. If there is animus deserendi the absence is straightway desertion."
25. In view of the ratio of abovejudgment, 'absence without leave' is to be considered as desertion where there is animus deserendi i. e. intention to desert. Intention has to be gathered from the surrounding circumstances and the conduct of the accused. Petitioner is said to have absented on 28. 5. 1998 at 1630 Hrs. and was arrested by police on 29. 5. 1998 at 1600 Hrs i. e. within 24 hours that too for his alleged involvement in an offence. No circumstances has been shown or even alleged where from intention to desert can be inferred. In absence of animus the offence of desertion cannot be said to be established.
QUESTION NO. 226. Section 47 of the Border Security Force Act 1968 provides that where a person is subject to the Act and commits any one of the offences as prescribed under this Section in relation to a person not subject to the Act, he shall not be tried by the Security Force Court unless he commits any of the offence while on active duty, at any place, out-side India or at any place specified by the Central Government by notification. Similarly, Section 80 of the Act deals with the exercise of choice where a Criminal Court and a Security Force Court both have the jurisdiction in respect to an offence. Under above circumstances the Director General, Inspector General, or Dy. Inspector General within whose command the accused person is serving or such other officer as may be prescribed, has the discretion to decide whether the accused should be tried by security force Court. In the instant case the accused/petitioner was said to be on active duty when the offence of rape was allegedly committed in relation to a person not subject to the Act. Therefore, the accused was triable both by the ordinary Criminal Court as also a Security Force Court. BSF authorities exercised the option for trial of the accused by the Security Force Court and consequently, the Sessions Judge after recording his reasons and the request of the officer transferred the custody of the accused/petitioner to BSF authorities. Rule 41 also deals with the jurisdiction of the Courts for trial of the accused where both Security Force Court or the Criminal Court has the jurisdiction. Similarly, specific rules have been framed in exercise of the power under section 141(2) of the Border Security Force Act, 1968, known as "The Criminal Courts and Border Security Force Courts (Adjustment of Jurisdiction) Rules 1969".
27. The following rules are relevant for the purposes of the present petition:-
Rules 41 & 42 of the Border Security Force Rules, 1968:-
"41. Trial of cases either by Security Force Court or Criminal Court -- (1) Where an offence is triable both by a criminal Court and a Security Force Court, an officer referred to in Section 80 may
(i)(a). Where the offence is committed by the accused in the course of the performance of his duty as a member of the Force, or;
(b). Where the offence is committed in relation to property belonging to the Government or the Force or a person subject to the Act, or;
(c) Where the offence is committed against a person subject to the Act, direct that any person subject to the Act, who is alleged to have committed such an offence, be tried by a Court; and
(ii) in any other case, decide whether or not it would be necessary in the interest of discipline to claim for trial by a Court any person subject to the Act who is alleged to have committed such an offence.
(2) In taking a decision to claim an offender for trial by a Court, and officer referred to in section 80 may take into account all or any of the following factors, namely:-
(a) the offender is on active duty or has been warned for active duty and it is felt that he is trying to avoid such duty;
(b) the offender is a young person undergoing training and the offence is not a serious one and the trial of the offender by a Criminal Court would materially affect his training;
(c) the offender can, in view of the nature of the case, be dealt with summarily under the Act.
42. Cases not to be tried by Security Force Court -- Without prejudice to the provisions of Rule 41, an offender may not be claimed for trial by a Security Force Court -
(a) where the offence is committed by him along with any other person not subject to the Act whose identity is known; or
(b) where the offence is committed by him while on leave or during absence without leave."
Rules 3, 4, 5, 6, 7 & 9 of the Criminal Courts and Border Security Force Courts (Adjustment of Jurisdiction) Rules. 1969:
3. Trial of person subject to the Act -- Where a person subject to the Act, is brought before a Magistrate and charged with an offence for which he is liable to be tried by the Border Security Force Court, such a Magistrate shall not proceed to try such persons or to inquire with a view to his commitment for trial by the Court of Sessions or the High Court for any offence triable by such Court, unless-
(a) he is of opinion, for reasons to be recorded in writing that he should so proceed without being moved thereto be the Competent Authority; or
(b) he is moved thereto by such authority.
4. Notice by Magistrate -- Before proceeding under Clause (a) of Rule 3, the Magistrate shall give written notice to the Commandant of the accused and until the expiry of a period of-
(i) three weeks, in the case of a notice given to a Commandant in Command of a Unit or detachment located in any of the following areas, that is to say-
(a) State of Nagaland;
(b) Mizo Hill, Garo Hill, Khasi and Jsintia Hill and North Cachar Hill Districts of Assam, or
(ii) ten days in the case of a notice given to any other commandant in command of a unit or detachment located elsewhere in India, from the date of the service of such notice, he shall not-
(a) convict or acquit the accused under section 243 or Section 254 or Section 247 of Section 248 of the Code of Criminal procedure, 1898 (V of 1898} or hear him in his defence under section 244 of the said Code; or
(b) frame in writing a charge against the accused under section 254 of the said Code; or
(c) make an order committing the accused for trial by the High Court or the Court of Sessions under Section 213 of the said Code; or
(d) transfer the case for inquiry or trial under section 192 of the said Code.
5. Procedure on notice to the Magistrate -- Where within the period mentioned in Rule 4 above, or at any time there-after before the Magistrate has done any act or made any order referred to in that rule, the Commandant of the accused or the Competent Authority, as the case may be, gives notice to the Magistrate that in the opinion of such authority, the accused should be tried by a Border Security Force Court, the Magistrate shall stay proceedings and if the accused is in his power or under his control, shall deliver him with the statement prescribed in Sub-section (1) of Section 549 of the Code of Criminal Procedure, 1898 (V of 1898) to the authority specified in said sub-section.
6. Procedure on notice to Magistrate before commencement of trial -- Where a Magistrate has been moved by the competent authority under clause (b) of Rule 3, and the Commandant of the accused or the competent authority, as the case may be, subsequently gives notice to such Magistrate that in the opinion of such authority the accused should be tried by a Border Security Force Court, such Magistrate if he has not before receiving such notice, done any Act or made any order referred to in Rule 4, shall stay proceedings and, if the accused ins in his power or under the control, shall in the like manner deliver him, with the statement prescribed in Sub-section (1) of Section 549 of the Code of Criminal Procedure, 1898 (V of 1898) to the authority specified in the said sub-section.
7. Intimation regarding trial of accused -- (1) When an accused has been delivered by the Magistrate under Rule 5 or 6, the Commandant of the accused or the competent authority, as the case may be, shall, as soon as may be, inform the Magistrate whether the accused has been tried by a Border Security Force Court or other effectual proceedings have been taken or ordered to be taken against him.
8. xxxxx
9. Delivery of accused to the Magistrate -- Where a person subject to the Act has committed an offence which, in the opinion of the Act has committed an offence which, in the opinion of the competent authority ought to be tried by a Magistrate in accordance with the Civil law in force or where the Central Government, on a reference mentioned in Rules 8, decides that the proceedings against such person should be instituted before a Magistrate, the Commandant of such person shall, after giving a written notice to the Magistrate concerned deliver such person under proper escort to that Magistrate."
28. An Officer while exercising option where to seek the custody of the accused for trial by a Security Force Court is further to be guided by the provisions contained in Rules 41 & 42 of the BSF Rules, quoted hereinabove. From the language of the rules, it is abundantly clear that he is required to take into consideration the factors indicated in Rules 41 & 42 above before he exercises the discretion to approach the Criminal Court for seeking custody of the accused for trial by the Security Force Court or to allow the trial by the Criminal Court. Admittedly, the Commandant exercised the option and sought the custody of the petitioner/accused for trial by the Security Force Court. Rules 3, 4, 5, 6 of the Criminal Courts and Border Security Force Courts (Adjustment of Jurisdiction) Rules 1969 further prescribed the mode and method how the Magistrate has to proceed with the trial of the person subject to the Act and in the event the Competent authority of the BSF has to seek the custody at what stage he is required to approach the Magistrate. In terms of Rule 3, the Magistrate before whom a person subject to Act is brought he shall not proceed to try such person or commit him for trial unless he is of the opinion for reasons to be recorded in writing that he should proceed without moving the Competent Authority. Before proceeding for the trial the Magistrate is required to give a written notice to the Commandant of the accused under Rule 4. Similarly under Rule 5 where the commandant of the accused or the competent authority gives notice to the Magistrate before the Magistrate has done any act or made any order, that in the opinion of such authority the accused should be tried by a Border Security Force Court the Magistrate is bound to stay the proceedings and deliver the custody of the accused to the Competent authority along with the statements prescribed under Sub-section (1) of Section 549 of the Code of Criminal Procedure. Similarly, Rule 6 provides that when the Magistrate has been moved by the Competent Authority under clause (b) of Rule 3, the procedure indicated in Rule 6 has to be followed. In the present case the Competent Authority i, e. the Commandant of the petitioner moved the Magistrate under Rule 3 (b) and the procedure indicated under Rule 6 was followed. The Custody of the accused was handed over to the Commandant for trial by the Security Force Court, After taking over the custody the BSF authorities had admittedly initiated proceedings for trial of the accused in accordance with the provisions of the BSF Act. The only duty cast upon the authorities was to intimate the Magistrate regarding the trial by the BSF Court or other effectual proceedings initiated against the accused in accordance with Rule 7, referred to above. Rule 9 relied upon by the learned counsel for the respondents deals with the situation where the authorities formulate an opinion that the accused should be tried by a Magistrate in accordance with the Civil Law in force or where the Central Government, on a reference by the Magistrate under Rule 7, decides that the proceedings against the accused should be initiated before a Magistrate. The spirit of Rule 9 is that the authorities have to formulate the opinion before exercising option or discretion in terms of Section 80 of the BSF Act. This Rule is to be read conjunctively with Rule 42 of BSF Rules and Section 80 of the BSF Act. Rule cannot be invoked to send the accused for trial after the option is exercised under section 80 of the Act read with Rule 41 of the BSF Rules and Rules 3 & 6 of the Criminal Courts and Border Security Force Courts (Adjustment of Jurisdiction) Rules 1969. After having exercised the option and initiated effectual proceedings the accused cannot be again sent for trial to the Criminal Court by invoking Rule 9,
29. In the present case, admittedly the authorities had exercised the option for trying the accused by the Security Force Court. Proceedings for recording of evidence was not only initiated but completed. The witnesses, namely, Constable Dara Singh, HC MSD Pillai, HC N. Keshawan, CI Rama Shanker, Ganesh Lal, Mohan Singh, M. Madhaiyan, Jaspal Singh, Sunil Saibya, Ananto AA Barman, Brindaban, Sanjeev Kumar, Tej Narayan Singh and Lal Din S/O Chandiah R/O Shajroo appeared before the officer conducting ROE. Their statements were recorded. However, they did not establish the offence under section 46 of the BSF Act read with sections 376/452, RPC against the accused. It was under these circumstances, the accused was not put to trial for want of prima facie evidence against the accused / petitioner. Consequently the accused was not subjected to trial by the Security Force Court for commission of offence under sections 376/452 RPC, though he was tried for offence under section 18(1) of the BSF Act.
30. Since no offence was proved against the accused/petitioner in proceedings initiated by the BSF authorities, after the accused/petitioner was subjected to proceedings under the Act, it was not there-after open to the BSF authorities to again hand over the accused for trial to the Criminal Court. There is no provision under the BSF Act and the Rules framed there-under, whereby the authority after having exercised the option under section 80 of the Act and the relevant rules referred to above, can again hand over the accused for trial to the Criminal Court, particularly when the proceedings for a trial were initiated i. e. holding of ROE and no witness came forward to establish the guilt of the accused. The action of the BSF authorities of handing over the accused to the Criminal Court for trial and the order of the Court entertaining the request for such a trial are illegal, un-warranted and without any authority of law. Accordingly, the action of the BSF authorities in handing over the accused as also the order of the learned Sessions Judge, Udhampur dated 19.11.1999 are quashed.
31. In the totality of the circumstances, this petition is allowed in the manner indicated above.
32. Mr. Baldev Singh, submits that the petitioner had deposited in cash Rs 10,000/- in this Court at the time he was admitted to bail in writ proceedings. In view of the fact that the writ petition has been allowed, the petitioner is entitled to receive back the amount of Rs 10,000/- deposited by him. Registry is directed to pay this amount to the petitioner.